96-678

 No. 96-678

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

1997

JACK MATTINGLY,

 Plaintiff and Appellant,

 v.

FIRST BANK OF LINCOLN, GERRY MALEK, d/b/a MALEK

REALTY; and AUGUST "GUS" HABETS,

 Defendants and Respondents.

APPEAL FROM: District Court of the First Judicial District,

 In and for the County of Lewis and Clark,

 The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD:

 For Appellant:

 David K. W. Wilson, Jr., and Jonathan Motl; Reynolds, Motl

 and Sherwood; Helena, Montana

 For Respondents:

 Gary L. Davis; Luxan & Murfitt; Helena, Montana

 (for Respondent First Bank Lincoln)

 Submitted on Briefs: June 12, 1997

 Decided: October 28, 1997

Filed:

 __________________________________________

 Clerk

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Justice Jim Regnier delivered the Opinion of the Court.

 In July 1993, plaintiff and appellant Jack Mattingly filed an action in the 

District

Court for the First Judicial District in Lewis and Clark County against First Bank of

Lincoln, real estate agent Gerry Malek, and August Habets to recover damages incurred

in connection with the 1987 purchase and sale of a service station located in 

Lincoln,

Montana. Mattingly brought suit alleging that at the time he purchased the service 

station

from Habets, the defendants, including First Bank through whom Mattingly obtained

financing, knew of underground contamination on the service station property but 

failed

to disclose its presence. 

 Mattingly asserted claims against First Bank for constructive fraud, 

negligence, and

negligent misrepresentation, and punitive damages. First Bank subsequently filed a

motion for summary judgment, which the District Court granted in a June 2, 1995, 

order. 

Mattingly timely filed a motion to alter or amend pursuant to Rule 59(g), M.R.Civ.P.,

arguing the court had improperly overlooked a number of issues of material fact. On

August 11, 1995, the District Court denied Mattingly's motion to alter or amend. 

Mattingly appeals the decision of the District Court granting First Bank's motion for

summary judgment. For the reasons discussed below, we reverse.

 We find the following issues dispositive on appeal:

 1. With respect to Mattingly's claim for negligent misrepresentation, did the

District Court err in finding that First Bank made no representation to Mattingly 

upon

which he might rely to his detriment?

 2. With respect to Mattingly's claim for constructive fraud, did the District

Court err in finding no special circumstances giving rise to a duty on the part of 

First

Bank to disclose to Mattingly any information it may have had regarding the

contamination?

 3. With respect to Mattingly's claim for constructive fraud, did the District

Court err in finding that First Bank gained no advantage by failing to disclose the

presence of the contamination? 

 4. Did the District Court err in granting First Bank's motion for summary

judgment on Mattingly's claim for punitive damages?

 FACTUAL BACKGROUND

 In July 1983, while installing a new sewer line on the south side of Highway 200

in Lincoln's city center, a construction crew discovered a pocket of gasoline 

floating on

the groundwater at a depth of six feet. Further investigation by the Water Quality 

Bureau

(WQB) and the Montana Department of Health and Environmental Sciences (DHES)

indicated that petroleum leaking from underground storage tanks at three gasoline 

retail

businesses operating at the main intersection of Highway 200 and Stemple Pass Road 

had

contaminated approximately 1.4 acres of land in the area. One of the three service

stations involved, "Gus's Exxon," was owned at the time by Habets. 

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 In 1986, at the behest of the WQB, Stiller and Associates completed a study

(Stiller report) which confirmed the presence of gasoline contaminated groundwater 

in the

quarter mile area stretching westward from the main intersection location of the 

three

gasoline service stations. Following various press accounts of the spill, and by 

virtue of

the fact that Lincoln is a small community, general knowledge of the contamination

became widespread throughout the Lincoln area, and within the First Bank organization

itself. Indeed, First Bank's property rested in such close proximity to the 

contaminated

area that, as a part of its initial investigation in 1983, DHES sought permission 

from then

bank president Susan Hemmer to excavate on the bank's property near the "leading edge

of the plume." 

 In May 1987, Habets listed "Gus's Exxon" for sale with Malek's real estate

brokerage firm. Later that same month, Mattingly entered into a contract with Habets

pursuant to which he agreed to purchase the station for $79,000, contingent upon his

ability to obtain institutional financing. Habets did not disclose to Mattingly 

that the

property had been contaminated. 

 Mattingly then met with First Bank Vice-President Joe Dolan to inquire about

obtaining a loan for the purchase of the property. At the time of Mattingly's loan

application, First Bank had a loan committee comprised of all the bank's board 

members. 

Among the committee's more active members were bank president Hemmer, as well as

director and shareholder John Mulcare. Mulcare also owned and operated Handi-Mart,

located across the street from the station purchased by Mattingly, and one of the 

three

stations identified as a source of the contamination. Mulcare knew of the 

contamination,

as evidenced by his attendance at a November 24, 1984, meeting with DHES officials

during which they explained the potential liability all three station owners faced 

due to

the contamination. Moreover, Mulcare obtained a copy of the 1986 Stiller report 

which

apportioned probable partial responsibility for the contamination to Mulcare's HandiMart, as well as to Gus's Exxon.

 Prior to approving loans on commercial real estate, First Bank made it a 

practice

to conduct some form of appraisal of the property to determine its value. First 

Bank did

not require a formal written appraisal in this case because of Mattingly's large down

payment on the property. Instead, prior to First Bank's approval of Mattingly's loan

request, Dolan conducted a physical inspection of the service station property to 

obtain

an impression regarding its value for the purpose of determining whether First Bank

would be secure in its loan. At the time of the inspection, Dolan was aware of

contamination in the area. 

 First Bank's loan committee met on June 8, 1987, to determine whether to approve

Mattingly's loan request. All of the loan committee members, including Hemmer and

Mulcare, were aware of the contamination. Mulcare, who had direct knowledge of the

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contamination, did not mention the contamination issue and abstained from discussing 

or

voting on the loan request because Mattingly was a business competitor. Hemmer, who

had direct knowledge of the contamination but did not know of the Stiller Report, 

also

remained silent with respect to the issue of contamination. Dolan, who was 

relatively

new to the Lincoln area, possessed only general knowledge of the contamination. He 

did

not know of the Stiller Report, and essentially relied on other bank board members 

for

information regarding the community. Without any discussion of the contamination

present on the property in question, the committee approved Mattingly's loan request 

in

the amount of $56,000. Closing took place at First Bank's Lincoln office on June 22,

1987. None of the documents associated with the transaction, including the buy-sell

agreement, contained any disclosure of the contamination. 

 After taking possession of the property, Mattingly wanted to remodel and expand

his business, so he applied with First Bank to obtain a second loan in the amount of

$127,000. After meeting on August 17, 1987, First Bank's loan committee denied

Mattingly's application. Mattingly subsequently obtained an SBA-guaranteed loan in 

the

amount of $105,000 through Norwest Bank in Great Falls. Mattingly used the loan

money to pay the remaining balance on the loan from First Bank, and to remodel the

service station. 

 Mattingly first learned of the contamination in July 1991 when he was in the

process of selling his property. That sale fell through due to the contamination, 

which

has since prevented Mattingly from selling the property. In a letter dated July 9, 

1992,

the DHES first informed Mattingly of his potential liability for the clean up of the

contamination.

 Mattingly filed this suit against Habets, Malek, and First Bank in July 1993. 

In

his second amended complaint, filed December 13, 1993, Mattingly alleged claims

against Habets for actual fraud, negligent misrepresentation, violation of Montana's

hazardous waste law õ 75-1-715(6)(d)(ii), MCA, and for punitive damages. Mattingly

brought claims against Malek for actual fraud, negligent misrepresentation, 

violation of

his statutory duty as a real estate licensee pursuant to õ 37-51-321, MCA, and 

punitive

damages. Finally, Mattingly brought claims against First Bank for constructive 

fraud,

negligence, negligent misrepresentation, and punitive damages.

 Mattingly subsequently settled his claims with Malek, and Habets signed a

confession of liability on December 22, 1995. On March 1, 1996, the court issued an

order of liability, finding Habets liable for breach of contract, negligent

misrepresentation, and violation of õ 75-10-715(6)(d)(ii), MCA. Following a nonjury

trial on the issue of damages, the District Court issued an order finding Habets 

liable for

actual damages in the amount of $435,000. On September 20, 1996, the court entered

a final judgment in this case, incorporating its prior order granting summary 

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judgment

in First Bank's favor. Mattingly appeals. 

 DISCUSSION

 This Court's standard of review in appeals from summary judgment rulings is de

novo. Treichel v. State Farm Mut. Auto. Ins. Co. (1997), 280 Mont. 443, 446, 930 

P.2d

661, 663. (citing Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), 274

Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470,

872 P.2d 782, 785). This Court reviews a summary judgment order entered pursuant to

Rule 56, M.R.Civ.P., based on the same criteria applied by the district court. 

Treichel,

280 Mont. at 446, 930 P.2d at 663 (citing Bruner v. Yellowstone County (1995), 272

Mont. 261, 264, 900 P.2d 901, 903).

 In proving that summary judgment is appropriate:

 The movant must demonstrate that no genuine issues of material fact exist. 

 Once this has been accomplished, the burden then shifts to the non-moving

 party to prove by more than mere denial and speculation that a genuine

 issue does exist. Having determined that genuine issues of material fact do

 not exist, the court must then determine whether the moving party is

 entitled to judgment as a matter of law. [This Court] reviews the legal

 determinations made by the district court as to whether the court erred. 

Bruner, 272 Mont. at 264-65, 900 P.2d at 903.

 Moreover, the "moving party has the burden of showing a complete absence of any

genuine issue as to all facts considered material in light of the substantive 

principles that

entitle the moving party to judgment as a matter of law and all reasonable 

inferences are

to be drawn in favor of the party opposing summary judgment." Kolar v. Bergo (1996),

280 Mont. 262, 266, 929 P.2d 867, 869. 

 ISSUE 1

 With respect to Mattingly's claim for negligent misrepresentation, did the 

District

Court err in finding that First Bank made no representation to Mattingly upon which 

he

might rely to his detriment?

 This Court has adopted the definition of negligent misrepresentation set forth 

in

the Restatement (Second) of Torts õ 552. See Durbin v. Ross (1996), 276 Mont. 463,

472, 916 P.2d 758, 764. Section 552 provides:

 (1) One who, in the course of his business, profession or employment, or

 in any other transaction in which he has a pecuniary interest, supplies false

 information for the guidance of others in their business transactions, is

 subject to liability for pecuniary loss caused to them by their justifiable

 reliance upon the information, if he fails to exercise reasonable care or

 competence in obtaining or communicating the information.

 In Kitchen Krafters v. Eastside Bank of Montana (1990), 242 Mont. 155, 789 P.2d

567 (overruled in part on other grounds by Busta v. Columbus Hosp. Corp. (1996), 276

Mont. 342, 370, 916 P.2d 122, 139), we set out the following elements of a claim for

negligent misrepresentation:

 a) the defendant made a representation as to a past or existing

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 material fact;

 b) the representation must have been untrue;

 c) regardless of its actual belief, the defendant must have made

 the representation without any reasonable ground for believing it to be true;

 d) the representation must have been made with the intent to

 induce the plaintiff to rely on it;

 e) the plaintiff must have been unaware of the falsity of the

 representation; it must have acted in reliance upon the truth of the

 representation and it must have been justified in relying upon the

 representation;

 f) the plaintiff, as a result of its reliance, must sustain damage.

Kitchen Krafters, 242 Mont. at 165, 789 P.2d at 573.

 Although a negligent misrepresentation may give rise to actual or constructive

fraud, where it is insufficient to do so, it may "nevertheless give rise to 

negligence

liability under õ 27-1-701, MCA, through want of ordinary care of the defendant in

managing his property or person." Bottrell v. American Bank (1989), 237 Mont. 1, 21,

773 P.2d 694, 706.

 A threshold element in any claim for negligent misrepresentation is that the

defendant make a representation as to a past or existing material fact upon which the

claim is based. Kitchen Krafters, 242 Mont. at 165, 789 P.2d at 573.

 The District Court granted First Bank's motion for summary judgment with respect

to Mattingly's claim for negligent misrepresentation on two grounds. First, the 

court

found that First Bank had not conducted a formal appraisal and had accordingly made 

no

representation to Mattingly regarding the property's value. Second, the court found

Mattingly could not have relied on any representations by First Bank before deciding 

to

purchase the property. In so finding, the court noted that First Bank loaned money 

to

Mattingly after he had already entered into a buy-sell agreement with Habets. 

 Following review of the record, this Court concludes the District Court erred in

determining as a matter of law that the record contained no evidence of misleading

statements made by First Bank to Mattingly and upon which he might have relied in

purchasing the service station. When considering a motion for summary judgment, this

Court must view the evidence in the light most favorable to the party opposing the

motion. Bowen v. McDonald (1996), 276 Mont. 193, 199, 915 P.2d 201, 205. From

this perspective, we conclude that a jury might well have viewed First Bank's conduct

as a representation. 

 It was First Bank's practice to perform an appraisal prior to approving a loan 

on

commercial real estate. Accordingly, prior to First Bank's approval of Mattingly's 

loan

request, Dolan inspected the subject property. First Bank concedes that Dolan 

visited the

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property and conducted an inspection "to obtain an impression regarding its value 

for the

purpose of determining whether First Bank would be secure in its loan." First Bank's

loan committee subsequently approved Mattingly's loan request in the amount of 

$56,000.

 Beyond these bare facts, however, the parties are in dispute. The parties 

dispute

the true nature, scope, and import of First Bank's evaluation of the property. They

additionally dispute whether First Bank's appraisal of the property and subsequent

approval of Mattingly's loan request constituted a representation that the property 

had a

value of at least $56,000. Whether First Bank's appraisal of the property, along 

with

its subsequent approval of Mattingly's loan request, constitutes a representation 

that the

property had a value of at least $56,000 is a question of material fact. 

 Assuming First Bank's appraisal of the property constituted an affirmative

representation to Mattingly regarding its value, the parties additionally dispute 

whether

Mattingly in fact relied upon such a representation in purchasing the property. The

District Court found that even had First Bank misrepresented the property's value

Mattingly could not have relied on that representation in purchasing the property. 

In so

concluding, the court correctly noted it was only "after [Mattingly] had entered 

into the

buy-sell agreement" that he contacted the Bank to secure financing. However, 

Mattingly

expressly conditioned his commitment to purchase the property upon his ability to 

obtain

that financing. Finalization of the sale was, therefore, contingent upon First 

Bank's

approval of his loan application and, arguably, its determination that the property 

was

worth the amount of the loan. Therefore, whether Mattingly relied on any 

representation

by First Bank with respect to the property's value in finalizing the sale is an 

additional

question of material fact. 

 Based on the foregoing, we hold the District Court erred in granting summary

judgment with respect to Mattingly's claim for negligent misrepresentation. 

Specifically,

we hold the court erred in finding no question of fact as to whether First Bank made 

an

affirmative representation regarding the condition or value of the property upon 

which

Mattingly might have relied.

 ISSUE 2

 With respect to Mattingly's claim for constructive fraud, did the District 

Court err

in finding no special circumstances giving rise to a duty on the part of First Bank 

to

disclose to Mattingly any information it may have had regarding the contamination?

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 In addition to claims for negligence and negligent misrepresentation, Mattingly

alleged a claim of constructive fraud against First Bank. The presence of a legal 

duty is

an essential element of a claim for constructive fraud. Section 28-2-406, MCA, 

defines

constructive fraud as :

 (1) any breach of duty which, without an actually fraudulent intent,

 gains an advantage to the person in fault or anyone claiming under him by

 misleading another to his prejudice or to the prejudice of anyone claiming

 under him; or

 (2) any such act or omission as the law especially declares to be

 fraudulent, without respect to actual fraud.

 Thus, in addressing First Bank's motion for summary judgment with respect to

Mattingly's claim for constructive fraud, this Court must first determine whether the

lower court erred in concluding First Bank owed no duty to Mattingly to disclose any

information it may have had regarding the contamination. 

 Whether or not a legal duty exists is a question of law for the court's

determination. Simmons v. Jenkins (1988), 230 Mont. 429, 435, 750 P.2d 1067, 1071. 

Although the legal duty which often exists in constructive fraud cases is a 

fiduciary one,

this Court has previously held that Montana's constructive fraud statute "does not 

require

that the plaintiff demonstrate a fiduciary relationship, [but] merely requires the

establishment of a duty." McJunkin v. Kaufman & Broad Home Systems (1987), 229

Mont. 432, 439, 748 P.2d 910, 915. Under certain "special circumstances," neither a

confidential nor a fiduciary relationship is necessary for a finding of constructive 

fraud. 

Drilcon, Inc. v. Roil Energy Corp. (1988), 230 Mont. 166, 172, 749 P.2d 1058, 1061.

 This Court has held special circumstances may exist where one party has acted to

mislead the other in some way. Specifically, this Court has determined that 

constructive

fraud may be present "[w]here sellers [of real property], by words or conduct, 

create a

false impression concerning serious impairment or other important matters and

subsequently fail to disclose the relevant facts." McGregor v. Mommer (1986), 220

Mont. 98, 109, 714 P.2d 536, 543 (citing Moschelle v. Hulse (1980), 190 Mont. 532,

539, 622 P.2d 155, 159.) Further, in Drilcon, 230 Mont. at 172, 749 P.2d at 1061-

62,

we affirmed a jury instruction on the question of constructive fraud which provided 

that

"[w]here a party, by his words or conduct creates a false impression concerning 

serious

impairments or other important matters and subsequently fails to disclose relevant 

facts,

constructive fraud may be found."

 In McGregor, we identified special circumstances justifying submission of the

question of constructive fraud to the jury where sellers of a gas station "made 

[misleading

and] general statements about the profitability of the business." McGregor, 220 

Mont.

at 109, 714 P.2d at 543. Similarly, in Moschelle, we held special circumstances

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supporting a claim for constructive fraud existed where sellers made misleading

statements regarding the physical condition of the property and the income generated 

from

the business. Moschelle, 190 Mont. at 539-40, 622 P.2d at 159. We recognized that

"[w]ithholding relevant facts concerning purchased property can be a fraudulent 

act." 

Moschelle, 190 Mont. at 539, 622 P.2d at 159. 

 In McJunkin, buyers of a mobile home brought suit against the manufacturer and

seller, asserting several claims, including one for constructive fraud. McJunkin, 

229

Mont. at 439, 748 P.2d at 914. We "recognized that a sufficient duty can arise in 

[such]

a commercial transaction," and concluded that "defendants had a duty to refrain from

intentionally or negligently creating a false impression by words or conduct." 

McJunkin, 

229 Mont. at 439-40, 748 P.2d at 915. 

 In the present case, the District Court found no special circumstances to 

support

Mattingly's claim for constructive fraud, and no factual basis upon which to 

predicate the

existence of a duty. In concluding that First Bank had no duty to disclose any

information it may have had regarding the contamination, the District Court found 

that 

 [t]here is no evidence that the Bank made any misleading statements to

 Mattingly which he relied on in purchasing the station. The Bank was not

 even a party to the transaction. It did not advise Mattingly in any way

 regarding the purchase nor did it represent Habets. Moreover, Mattingly

 had never previously dealt with the Bank. It was only after he had entered

 into the buy-sell agreement that he contacted the Bank to secure financing. 

 Thus, the Bank did not have a special relationship with Mattingly nor did

 it owe him a fiduciary duty.

 Review of the record indicates the District Court erred in granting First Bank's

motion for summary judgment with respect to the question of constructive fraud. 

Specifically, we hold the lower court erred in finding that "[t]here is no evidence 

that the

Bank made any misleading statements to Mattingly which he relied on in purchasing the

station."

 As discussed above, we concluded that whether First Bank made misleading

statements to Mattingly with respect to the condition or value of the property is a 

question

of fact precluding summary judgment. We further concluded that, assuming the 

presence

of such a misrepresentation, the question of whether Mattingly relied on that 

statement

in purchasing the station is an additional question of fact.

 A duty sufficient to support a claim for constructive fraud may arise in a

commercial transaction. McJunkin, 229 Mont. at 439-40, 748 P.2d at 915. Whether

First Bank, by its words or conduct, created a false impression concerning the

contamination, and subsequently failed to disclose relevant facts, is a question of 

material

fact. Special circumstances giving rise to a duty on the part of First Bank may 

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exist

should a trier of fact find that First Bank misrepresented the value of the property 

in light

of the contamination, and that Mattingly relied upon this representation in 

purchasing the

property. 

 Furthermore, First Bank had peculiar knowledge of the environmental hazard. 

Mattingly contracted with First Bank to borrow money, unaware of the duties and

financial obligations he was assuming by becoming an owner of environmentally damaged

property. A jury may well conclude that such facts would constitute special

circumstances in this case. 

 Based on the foregoing, we conclude that the District Court erred in summarily

finding no special circumstances giving rise to a duty on the part of First Bank to 

disclose

any information it may have had regarding the ground contamination to Mattingly.

Accordingly, we hold the District Court erred in granting First Bank's motion for

summary judgment on Mattingly's claim for constructive fraud.

 ISSUE 3

 With respect to Mattingly's claim for constructive fraud, did the District 

Court err

in finding that First Bank gained no advantage by failing to disclose the presence 

of

contamination? 

 The District Court granted First Bank's motion for summary judgment on the issue

of constructive fraud on the additional basis that First Bank gained no advantage 

over

Mattingly by failing to disclose the contamination. Pursuant to õ 28-2-406, MCA, a

necessary component of any claim for constructive fraud is that, in breaching a 

duty, one

party "gain an advantage" over the other. 

 Mattingly argues that First Bank was advantaged by its alleged decision to 

withhold

information regarding the contamination in a number of respects. For instance, 

Mattingly

points out that First Bank held the note on Habets' underlying loan, and that, upon

closing the sale with Mattingly, First Bank was able to pay the balance remaining on

Habets' loan. Thus, Mattingly argues, First Bank found in him a borrower who knew

nothing of the contamination and who would accordingly be less likely to default on 

his

loan than would a borrower, such as Habets, who knew the property to be seriously

defective. Mattingly also argues that First Bank was advantaged by failing to 

disclose the

contamination because, had Mattingly learned of the contamination, he would not have

purchased the property and First Bank would not have been able to collect interest 

income

on the loan.

 The District Court found that, even assuming First Bank knew of the

contamination, it gained no advantage by failing to disclose its presence. 

Specifically,

the court held that "[i]f Mattingly had defaulted on the loan and the Bank 

foreclosed on

its mortgage, the Bank might very well have ended up with a piece of property with 

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little

value, or which perhaps even constituted a financial liability."

 Notwithstanding this fact, this Court concludes that whether or not First Bank

gained advantage over Mattingly by failing to disclose the contamination, as 

contemplated

by the definition of constructive fraud, is a question of material fact for the 

trier of fact.

 ISSUE 4

 Did the District Court err in granting First Bank's motion for summary judgment

on Mattingly's claim for punitive damages?

 By way of his second amended complaint, Mattingly asserted a claim for punitive

damages against First Bank. Because the District Court ordered summary judgment in

First Bank's favor on Mattingly's claims for constructive fraud and negligent

misrepresentation, it also granted First Bank's motion for summary judgment on his 

claim

for punitive damages.

 Having reversed the District Court's order with respect to Mattingly's claims 

for

constructive fraud and negligent misrepresentation, we similarly reverse its grant of

summary judgment on Mattingly's claim for punitive damages.

 Pursuant to õ 27-1-221(1), MCA, punitive damages are available where a

defendant is found guilty of actual fraud or actual malice. Accordingly, for the 

issue of

punitve damages to reach the jury, Mattingly must present evidence of actual fraud or

malice.

 CONCLUSION

 In conclusion, we hold that the District Court erred in granting First Bank's 

motion

for summary judgment and in making findings as a matter of law when a jury may well

have reached a different conclusion. Specifically, we hold the District Court 

erred in

finding that First Bank made no representation to Mattingly upon which he might rely 

to

his detriment. We also hold the District Court erred in finding no special 

circumstances

giving rise to a duty on the part of First Bank to disclose any information it may 

have had

regarding the contamination to Mattingly. Finally, we hold the court erred in 

finding that

First Bank gained no advantage by failing to disclose the presence of contamination 

and

erred in granting First Bank's motion for summary judgment on the issue of punitive

damages. 

 On these bases, we reverse the order of the District Court granting First Bank's

motion for summary judgment and remand the case for further proceedings consistent

with this opinion. 

 /S/ JIM REGNIER 

We Concur:

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/S/ J. A. TURNAGE

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

/S/ DOUGLAS G. HARKIN, 

 District Judge sitting for Justice James C. Nelson

Justice Karla M. Gray, concurring in part and dissenting in part.

 I concur in the Court's opinion on issue one and agree that Mattingly must be

permitted to proceed with his negligent misrepresentation claim against First Bank. 

I 

respectfully dissent, however, from that opinion on issue two, whether he may proceed

on his constructive fraud claim. As a result, I also dissent from issues three and 

four,

which need not be reached under a proper resolution of issue two. I would conclude 

that,

because no underlying duty has been established on which the constructive fraud claim

can rest, the District Court did not err in granting First Bank's motion for summary

judgment on that claim.

 As the Court points out, the existence of a legal duty is a question of law for 

the

district court's determination. Moreover, the statute at issue, õ 28-2-406(1), MCA,

clearly requires a foundational duty in a constructive fraud claim, by defining 

constructive

fraud as "any breach of duty which, without an actually fraudulent intent, gains an

advantage to the person in fault or anyone claiming under him by misleading another 

to

his prejudice. . . ." (Emphasis added.) Simply and plainly, the statute requires an

existing duty, the breach of which accomplishes an advantage to one by means of

misleading another to the second person's prejudice. In other words, the result and

means of breaching the duty remain secondary to the existence of the duty. 

 The Court's "special circumstances" analysis essentially voids the duty 

requirement

of the statutory constructive fraud claim by substituting the result and means of 

breaching

the duty for the necessity of an underlying duty which can be breached. In other 

words,

the Court determines that genuine issues of material fact exist in that First Bank 

may have

gained an advantage over Mattingly by misleading him to his prejudice. It is my view

that, under a straightforward interpretation of the plain words of the statute, the 

questions

of whether First Bank "gain[ed] an advantage . . . over [Mattingly] by misleading him

to his prejudice" are factual questions relating to a "breach." Because there can 

be no

"breach" without an underlying duty, these matters arise only if, and when, the

underlying duty required by the statute has been established as a matter of law. The

existence of that duty, as the Court agrees, is a question of law for the district 

court.

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96-678

 "In the construction of a statute, the office of the judge is simply to 

ascertain and

declare what is in terms or in substance contained therein, not . . . to omit what 

has been

inserted." Section 1-2-101, MCA. I submit that calling the breach-related elements 

of

the statutory constructive fraud claim "special circumstances" effectuates a 

judicial repeal

of the duty requirement enacted by the legislature. 

 For the same reasons, it is my view that Drilcon, Inc. was an erroneous

interpretation of the plain meaning of õ 28-2-406(1), MCA. I would overrule that 

case

and hold, with regard to issue two in this case, that the District Court did not err 

in

granting First Bank's motion for summary judgment on the basis that no duty existed 

on

which to premise a statutory constructive fraud claim.

 /S/ KARLA M. GRAY

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